IN RE: David Anthony YORK

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Court of Appeal, Sixth District, California.

IN RE: David Anthony YORK, et al., On Habeas Corpus. In re Johnny CADENAZ, et al., On Habeas Corpus. In re Paul Blaise ATKINS, et al., On Habeas Corpus.

Nos. H011030, H011177 and H011242.

Decided: February 22, 1994

Stuart R. Rappaport, Public Defender, Stephen B. Elrick, Deputy Public Defender, San Jose, for petitioners. George W. Kennedy, Dist. Atty. Joseph V. Thibodeaux, Deputy Dist. Atty., San Jose, for respondents and real party in interest.

In their petitions for writ of habeas corpus, the 11 petitioners ask this court to vacate those portions of their supervised own recognizance release orders which require them to submit to drug testing and warrantless search and seizure.   Under direction of the California Supreme Court we issued an order to show cause, returnable before this court.

This case presents the issue of whether a magistrate or judge may require all arrestees accused of controlled substance-related felony offenses to submit to drug testing and warrantless search as a condition of release on their own recognizance (hereafter referred to as OR).   Each petitioner was charged with one or more controlled substance-related felonies and then agreed to “[s]ubmit to drug [and, in some instances]/alcohol testing” and to “[p]ermit search and seizure of his/her person, residence, and vehicle by any peace officer without a search warrant” as a condition of OR release.

 Petitioners contend that requiring someone accused, but not convicted, of a crime to submit to a warrantless search as a condition of OR release 1 is always unlawful;  they claim these conditions “are specifically prohibited by existing case law, unauthorized by statute, unnecessary, irrelevant to petitioners' future appearance in court, and inconsistent with the presumption of innocence.”   They contend the conditions “unreasonably restrain the liberty which petitioners retain under the Fourth Amendment to the United States Constitution, Article I, section 13 of the California Constitution, deny the right to privacy under California Constitution Article I, section 1, and deprive petitioners of due process of law under the Fifth Amendment to the United States Constitution and Article I, section 15 of the California Constitution,” and deny equal protection of the law.   In a concomitant argument, petitioners claim the challenged conditions are “invalid because they were imposed as a blanket policy, and not as the result of an individualized determination that they were appropriate to petitioners' specific situations.”  (Capitalization omitted.)

In opposition, the People argue that “when an accused defendant released on [OR] voluntarily accepts a search clause as a condition of his O.R. release, he should also be adjudged as waiving his reasonable expectation of privacy under the Fourth Amendment.”

We shall conclude that drug testing and warrantless search and seizure conditions may be imposed in conjunction with OR release if, after considering the specific facts and circumstances in a particular case, the judge or magistrate determines that those facts and circumstances justify the condition or conditions.   The drug testing and search and seizure conditions before us were imposed by mechanical rules on a categorical basis.   Because the records before us reflect no individualized consideration or determination, we shall issue the writs.

1. The Facts and Proceedings

Petitioners, all of whom were released on their OR prior to adjudication of their guilt, were given their OR release upon condition, inter alia, that they submit to drug testing and agree to be subject to search and seizure of their persons, residences and vehicles by any peace officer without a search warrant.   Several petitioners objected to the conditions they now challenge when the conditions were first proposed, but the magistrate or judge refused to order OR release without them.   In each case, the conditions were listed on a form entitled “RELEASE ON:  SUPERVISED OWN RECOGNIZANCE” and an “X” had been placed in the box to the left of each condition.   These conditions were imposed without individualized consideration of each case, regardless of considerations such as whether the individual petitioner had any prior drug-related convictions, had admitted drug use, or had received drug test results which indicated drug use.

The record suggests that the magistrate who imposed all but two of the drug testing and search conditions on the petitioners did so as a matter ofcourse or as an established policy in certain kinds of drug cases.   The pre-trial release officer assigned to the magistrate's court testified that the public defender routinely objected to these conditions being imposed on petitioners and other public defender clients but that the magistrate denied every motion with no explanation for the imposition of these conditions other than “take it or leave it.”   Neither the superior court nor the People have produced evidence that the drug testing or search conditions were justified by any of the petitioners' individual circumstances;  instead, they claim it is reasonable to require all persons accused of felony drug offenses to agree to warrantless search and seizure conditions before being released on supervised OR release.

2. Mootness

 Because petitioners have no speedy or adequate remedy at law, habeas corpus is the appropriate remedy.  (See In re Catalano (1981) 29 Cal.3d 1, 8, 171 Cal.Rptr. 667, 623 P.2d 228;  In re Smiley (1967) 66 Cal.2d 606, 612, 58 Cal.Rptr. 579, 427 P.2d 179;  In re Sturm (1973) 11 Cal.3d 258, 265, 113 Cal.Rptr. 361, 521 P.2d 97;  People v. Barbarick (1985) 168 Cal.App.3d 731, 737–740, 214 Cal.Rptr. 322.)   The Supreme Court has directed this court to address the merits of the petition, “regardless of whether the underlying criminal prosecution of the petitioners has been concluded.”  (See, generally, In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.)

3. Penal Code Section 1318 2

Section 1318 specifies the procedure for releasing persons upon their OR:  “(a) The defendant shall not be released from custody ․ until the defendant files with the clerk ․ a signed release agreement which includes:  [¶] (1) The defendant's promise to appear․  [¶] (2) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate․”

Until 1989, the above section provided for OR release upon a written promise to appear, to not leave the state, and to waive extradition, along with the accused's acknowledgment that he or she had been informed of the consequences and penalties for violation of these conditions.

In decisions published in and before 1985, California courts made clear that “[t]he sole issue at the OR hearing is whether the detainee will appearfor subsequent court proceedings if released on OR” (Van Atta v. Scott (1980) 27 Cal.3d 424, 438, 166 Cal.Rptr. 149, 613 P.2d 210) and that “[a]ccordingly, the ‘․ court's discretion to impose conditions upon [a preconviction] OR release is limited to conditions which are reasonably related to and attempt to insure subsequent court appearances' [Citation.]”  (People v. Barbarick, supra, 168 Cal.App.3d at p. 735, 214 Cal.Rptr. 322.)   Barbarick held that, in the case of an OR release pending appeal from a misdemeanor drug conviction, a condition that a defendant submit to search for narcotics, dangerous drugs or marijuana was “not reasonably related to securing defendant's subsequent appearance.”  (Id., at p. 736, 214 Cal.Rptr. 322.)

In March of 1988, the attorney general's office sponsored and supported Assembly Bill 4282 (hereafter AB 4282), which added subdivision (2) to section 1318.  (Stats.1988, c. 403, § 4.)

 The parties focus on the 1988 addition to section 1318.   They correctly agree that the addition is ambiguous as to whether it authorizes conditions such as those petitioners challenge and that we may go behind the statutory language and explore legislative history in an effort to determine the Legislature's intent.   Because it is unclear from the words used in the statute whether subdivision (2) of section 1318 was intended to encompass Fourth Amendment waivers in any or all cases, we have reviewed the pertinent legislative history in an effort to uncover any indications of legislative intent.  (U.S. v. Taylor (6th Cir.1989) 882 F.2d 1018, 1023–1028;  see also, Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785, 138 Cal.Rptr. 378.)   We consider the circumstances and events leading up to the introduction of the bill, including statements by various parties concerning the nature and effect of the proposed law, and the actions taken and statements made during legislative consideration.   We also take into account “the object in view, the evils to be remedied, the history of the times, legislation upon the same subject, public policy and contemporaneous construction [citations].”  (Steilberg v. Lackner, supra, 69 Cal.App.3d at p. 785, 138 Cal.Rptr. 378.)

 Viewed and analyzed in the light of basic rules relating to the interpretation of statutes, we find that, although nothing in the legislative history sheds light upon whether the Legislature intended OR releases to ever be conditioned upon a waiver of Fourth Amendment rights, it is clear the Legislature intended to codify the long-standing practice of courts imposing OR conditions beyond those specifically intended to insure subsequent court appearances.   Petitioners concede that “reasonable conditions” under section 1318 “might” contemplate protection of the public and that they are not taking “the position that public safety was irrelevant” or that “public safety was something a court was prohibited from considering” in fashioning OR release conditions.   We agree, given that the legislative history supports the conclusion that the new subdivision (a)(2) of section 1318 authorizes reasonable conditions related to public safety.

AB 4282 was sponsored by the attorney general's office and authored by Assemblyman Bruce Bronzan.   In its letter urging Bronzan to support AB 4282, the attorney general explained that the bill “codifi[ed] the court's authority to place reasonable conditions on a criminal defendant who is released upon his or her own recognizance.”   The attorney general explained the need for the “reasonable condition” portion of the bill and its potential impact:  “Existing statutes ․ do not address the court's ability to impose conditions upon such release.   As a result, although the judiciary has routinely imposed limitations on the defendant's behavior as a condition of own-recognizance release, these conditions vary greatly from case-to-case.   Probably the most common condition is the proviso that the defendant refrain from criminal conduct while on release.   In domestic violence and child molest cases it is common for the court to impose conditions to protect the victim.   And when witness intimidation is a potential issue, the courts usually fashion conditions designed to protect the witness and the integrity of the judicial process.  [¶] Despite this necessary, common and long-standing practice, the only conditions expressly authorized by statute for own-recognizance release are those relating to the defendant's appearance․  (§ 1318.)  [¶] AB 4282 will cure this deficiency by expressly providing that the court or magistrate may condition own-recognizance release on ‘reasonable conditions.’   In doing so, this bill will not only provide legislative authority and guidance for the courts, but will protect defendants from capricious release conditions.”   Identical letters were sent to the chairman of the Assembly Committee on Public Safety, the chairman of the Senate Judiciary Committee, the chairman of the Appropriations Committee, and former Governor George Deukmejian.   This letter's analysis was adopted virtually verbatim in the analyses of the bill prepared by the Assembly Committee of Public Safety and the Senate Committee on Judiciary.

While the challenged search conditions before us cannot be said to relate to the likelihood that a defendant will make subsequent court appearances, they do relate to prevention and detection of further crime and thus to the safety of the public.

 We are convinced the Legislature intended to give the magistrate or court broad discretion to impose any reasonable condition of OR release, including reasonable conditions related to public safety, and not simply those conditions specifically related to future appearance in court or those listed asexamples by the attorney general or by the legislative committees which analyzed AB 4282.3

 On the other hand, our review of the legislative history of the “reasonable conditions” statutory provision in question compels us to agree with petitioners that the Legislature intended the magistrate or court to engage in a case-by-case determination of what constitutes a reasonable condition.4

For example, the Assembly Committee on Public Safety filed a report analyzing AB 4282 (Bronzan) addressing whether the court should have “THE AUTHORITY TO PLACE REASONABLE CONDITIONS ON A CRIMINAL DEFENDANT WHO IS RELEASED UPON HIS OR HER OWN RECOGNIZANCE?”   In that report, the legislative committee commented that “[u]nder current law, the court's authority to impose such limitations is derived from implied powers contained in the California Constitution.   This bill will cure the deficiency in current statutory law by providing express legislative authority and guidance for the courts.”   The committee continued:  “According to the California Attorney General's Office, it is the common and long-standing practice of the judiciary to impose limitations upon a defendant's behavior as a condition of OR release.   These conditions vary greatly from case to case.”   After listing the same examples of common restrictions set forth in the attorney general's letter to Bronzan, the committee adopted verbatim the attorney general's analysis that “[b]y providing that the court may impose ‘reasonable conditions,’ this bill will not only provide express authority for the court, but will protect defendant from capricious release conditions.”

After the Assembly passed AB 4282, the Senate Committee on the Judiciary compiled background information on the bill.   One of the key issues it listed was “SHOULD COURTS BE GIVEN STATUTORY AUTHORITY TO IMPOSE ‘REASONABLE CONDITIONS' ON OWN–RECOGNIZANCE RELEASES OF ARRESTEES?”   The committee responded to this question with the following comment:  “Article 1, § 12 of the California Constitution provides that ‘a person may be released on his or her recognizance in the court's discretion.[’]  [¶] Additionally, the Penal Code provides a comprehensive scheme to regulate OR releases, however, the statutes do not specifically authorize the courts to impose conditions upon such releases.   According to the sponsors, the courts have, however, routinely imposed limitations on the defendant's behavior as a condition of OR releases, the most common of which is the requirement that the defendant refrain from criminal conduct while on release.   The sponsors further cite conditions imposed in domestic violence and child molest cases to protect the victim, or in witness intimidation cases to protect the witness and the judicial process.”

 We are persuaded the Legislature realized appropriate conditions of OR release vary greatly from case to case and intended the magistrate or court to fashion such conditions on a case-by-case basis rather than imposing conditions by mechanical rules on a categorical basis.   Concomitantly, we are convinced the Legislature intended to protect defendants from capricious conditions by having the magistrate or court state the facts upon which he or she based the decision to impose particularized conditions upon a given defendant.

Our analysis is analogous with existing law.

In In re William M., supra, 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737, a juvenile court determined that a minor's detention should be continued on the basis that, for the safety of others, anyone who sold marijuana should be detained until his regular hearing.   Questioning “whether a juvenile court may ․ establish a rule that all juveniles accused of a specific type of offense should automatically be detained,” our Supreme Court concluded that “the Juvenile Court Law protects the minor's rights to an individualized detention hearing, in which the court may not dispose of cases by mechanical rules on a categorical basis.”  (Id., at p. 19, 89 Cal.Rptr. 33, 473 P.2d 737.)   The court reasoned that it was clear “the Legislature intended that the court should exercise its discretion on the facts of the individual case, rather than enclose certain cases in tombs of silence.”  (Id., at p. 30, 89 Cal.Rptr. 33, 473 P.2d 737.)   The court went on to say that while it shared “the juvenile court's concern with the serious problem of drug abuse among juveniles, [that] concern cannot justify the elimination of elementary requirements of individualized justice and due process.”  (Id., at p. 31, 89 Cal.Rptr. 33, 473 P.2d 737.)

Petitioners' reliance upon People v. Barbarick, supra, 168 Cal.App.3d 731, 214 Cal.Rptr. 322, is misplaced.   That pre-AB 4282 case was written at a time when it was undisputed that a “court's discretion to impose conditions upon [a pre-conviction] OR release [was] limited to conditions which are reasonably related to and attempt to insure subsequent court appearances.”   (McIntosh v. Municipal Court (1981) 124 Cal.App.3d 1083, 1085, 177 Cal.Rptr. 683.)   This case, on the other hand, involves felony charges which arose after section 1318 was amended.   As discussed above, the legislative history of AB 4182 evinces an intent to permit the magistrate or court to order OR conditions based upon the court's concern that a defendant will continue to engage in criminal conduct given the Legislature's noted purpose to codify the long-standing practice of conditioning OR release upon an accused's promise to obey all laws in the future.   Most significant, however, is the determination in Barbarick that “[a]lthough the judge who authorized the search condition made an improper legal determination, ․ he had a substantial basis for doing so and did not act unreasonably.  [Citations.]”  (168 Cal.App.3d at p. 739, 214 Cal.Rptr. 322.)

In the civil arena, several cases hold that drug testing invades a fundamental right of privacy and cannot be required without a particularized showing of need, whether those tests are conducted by the government or by private persons.  (See Hill v. Nat. Collegiate Athletic Assn., etc. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633;  Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1044–1045, 264 Cal.Rptr. 194;  Semore v. Poole (1990) 217 Cal.App.3d 1087, 1097–1098, 266 Cal.Rptr. 280.)

The United States Court of Appeals for the District of Columbia Circuit in Berry v. District of Columbia (D.C.Cir.1987) 833 F.2d 1031, remanded the case before it to the district court for a factual determination whether the county's pretrial release drug testing program constituted an unreasonable search and seizure.   In providing guidance to the lower court on how to evaluate such a claim, the court concluded that before the district could insist upon drug testing as a condition of pretrial release, it “must proffer reliable evidence, statistical or otherwise, from which the trial court can reasonably conclude that drug use makes it significantly more likely that an arrestee will commit crimes or fail to appear for scheduled court dates [fn. omitted]” and that “there is a reasonable basis for the apparent assumption that arrestees ordered into the testing program are potential drug users.”   (Id., at p 1035.)   Assuming such a correlation, the court went on to add that “[i]f the trial court finds that drug testing and treatment are only required when there is an individualized determination that an arrestee will use drugs while released pending trial, then the District's testing program will more likely than not be found reasonable.   Individualized suspicion should be based on evidence of prior drug use, such as drug-related convictions or self-reported drug use.  [fns. omitted].”  (Ibid.)   In response to the government's argument that individualized suspicion should not be required because an exceptionally large percentage of persons arrested in the district are drug users likely to use drugs while released pending trial and that there is no less restrictive alternative means than drug testing to detect such use, the court noted that “ ‘[e]xceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal․’  [Citation.]”   (Id., at p. 1036;  see also Portillo v. U.S. Dist. Court for the Dist. of Arizona (9th Cir.1994) 15 F.3d 819 [94 C.D.O.S. 529].)

 The legislative history of section 1318 reveals that the statute as amended reflects the Legislature's intention not to permit imposition of OR conditions without considering the accused's case on its individual merits, and we agree with the court in Berry that it is only reasonable to require drug testing and/or warrantless searches of person, vehicle, and residence as a condition of OR release when there is an individualized determination that it is reasonably likely that a pretrial detainee will use drugs or possess drugs while released pending trial.   Here, we find no showing of facts to justify the search conditions beyond the fact that each petitioner had been arrested on felony drug charges.   We similarly find no attempt by the judge or magistrate to determine whether the conditions were justified by particular facts or circumstances.   In virtually every instance, the judge or magistrate explicitly or implicitly imposed the conditions on a “take it or leave it” basis in furtherance of a blanket policy of imposing such conditions on OR release in every felony drug case regardless of its particular circumstances.   Therefore, on the records before us we cannot determine whether as to any particular petitioner's individual case the conditions imposed were reasonable.5

4. Constitutionality of the Search and Seizure Conditions as a Condition of Pre–Trial Release

We disagree with petitioners' contention that the challenged search conditions can never be imposed as a condition of pretrial release because there will never be a compelling necessity for search conditions in a case in which a pretrial detainee is accused of no more than a felony drug offense.

 The Fourth Amendment and Article I, sections 13 and 15 of the California Constitution proscribe only unreasonable invasions of privacy and searches and seizures.  “In determining the standard of reasonableness applicable to a particular type of ‘search’ or ‘seizure,’ a court must balance ‘the nature and quality of the intrusion of the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’  [Citations.]”  (Berry v. District of Columbia, supra, 833 F.2d at pp. 1034–1035;  Hill v. NCAA, supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   In support of their contention that conditions which arguably infringe on constitutional rights require explicit statutory authorization, petitioners unpersuasively rely upon the holding in Frederick v. Justice Court (1975) 47 Cal.App.3d 687, 121 Cal.Rptr. 118, that the justice court had no power to condition its order of diversion upon an express waiver of a fundamental constitutional right neither specified nor implied in the statutes authorizing diversion.

The Frederick court reasoned:  “The statutes authorizing diversion require that defendants ․ waive ․ one constitutional right—the right to a speedy trial.   Respondent court here added as a condition to a diversion of petitioner's case a waiver of a second constitutional right—the right to be free from unreasonable searches and seizures․   This it had no power to do with respect to a program wholly the creature of statute and unknown to common law.”  (47 Cal.App.3d, at p. 690, 121 Cal.Rptr. 118, italics omitted.)   “[U]nlike the narcotic addict and the near addict and the probationer as well (see Pen.Code, § 1203.1), the imposition of the condition at issue is neither expressly nor impliedly authorized by statute.   Accordingly, this lack of statutory authorization and the lack as well of a compelling necessity therefor placed the imposition of this condition of an express waiver of a constitutional right beyond the court's powers in a proceeding that is wholly and exclusively statutory.”  (Id., at pp. 691–692, 121 Cal.Rptr. 118.)

Petitioners argue that the result in this case necessarily “must be the same” because they are in a “very similar situation.”   We are not persuaded because here, unlike the diversion statutes, an argument can be made that the statutes authorizing OR release impliedly grant the court inherent power to add as a condition to its OR release order an express waiver of a fundamental constitutional right if that condition is deemed “reasonable” within the meaning of subdivision (2) of section 1318, which codifies the traditional discretionary power of the courts over OR release.   We do not read Frederick as authority for the proposition that constitutionally significant conditions on OR release must be explicitly authorized by statute, and we are unwilling to hold as a matter of law that “imposition of search and seizure as a condition of release is beyond the power of the court” because “no provision is expressly or impliedly made for waiver of one's Fourth Amendment rights.”

In arguing that the “reasonable conditions” language does not encompass a waiver of Fourth Amendment rights, petitioners rely on the emphasized portion of the following sentence from Frederick:  “Accordingly, this lack of statutory authorization and the lack as well of a compelling necessity therefor placed the imposition of this condition of an express waiver of a constitutional right beyond the court's powers in a proceeding that is wholly and exclusively statutory.”  (47 Cal.App.3d at p. 692, 121 Cal.Rptr. 118.)   They rely upon similar language in Parra v. Municipal Court (1978) 83 Cal.App.3d 690, 694, 148 Cal.Rptr. 203, which held that a court could not require “an informal admission of guilt” as a condition of diversion because “[i]n the absence of a compelling necessity to imply other conditions within the statutory scheme ․ the courts may neither impose additional requirements or qualifications ․ not specified in the statute.”   Petitioners reason that “[t]he lack of any compelling necessity to impose a condition of search and seizure for O.R. release of one charged with a drug offense also militates against the validity of the condition” because “[i]f there is no compelling necessity to impose search and seizure on one who is diverted, there is, likewise, no need to do so for one who is released on his own recognizance [fn. omitted].”  This reasoning ignores the fact that the “compelling necessity” language in Frederick and Parra becomes relevant only in the context of a statutory scheme in which the conditions at issue cannot be argued to have been impliedly authorized by statute.

 While Frederick 's discussion of “compelling necessity” appears to have been prompted primarily by the court's concern that a “wholly and exclusively statutory” procedure should not be judicially modified except upon the strongest showing of need, other cases clarify that, apart from the question of statutory authorization, a condition which impinges on the exercise of an individual's constitutional rights must be justified by known circumstances.   Nevertheless, we disagree with petitioners' claim that a showing sufficient to justify a search condition on OR release can never be made in a felony drug case;  instead, we conclude that the existence or nonexistence of sufficient justification must be evaluated on a case-by-case basis.6

12] In Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 271, 57 Cal.Rptr. 623, 425 P.2d 223, the court held that “[w]hen ․ the conditions annexed to the enjoyment of a publicly conferred benefit require a waiver of rights secured by the Constitution, however well-informed and voluntary that waiver, the governmental entity seeking to impose those conditions must establish:  (1) that the conditions reasonably relate to the purposes sought by the legislation which confers the benefit;  (2) that the value accruing to the public from imposition of those conditions manifestly outweighs any resulting impairment of constitutional rights;  and (3) that there are available no alternative means less subversive of constitutional right, narrowly drawn so as to correlate more closely with the purposes contemplated by conferring the benefit.  [Citations.]”   Variants of these principles have been applied to requirements accepted as conditions of probation in lieu of imprisonment.   A challenged condition of probation which impinges upon the exercise of a fundamental right “must be subjected to special scrutiny to determine whether the restriction is entirely necessary to serve the dual purposes of rehabilitation and public safety.  [Citations.]  ․ ‘If available alternative means exist which are less violative of a constitutional right and are narrowly drawn so as to correlate more closely with the purpose contemplated, those alternatives should be used [citations].’  [Citation.]”   (People v. Pointer (1984) 151 Cal.App.3d 1128, 1139, 199 Cal.Rptr. 357;  see also People v. Zaring (1992) 8 Cal.App.4th 362, 370–371, 10 Cal.Rptr.2d 263;  People v. Burden (1988) 205 Cal.App.3d 1277, 1281, 253 Cal.Rptr. 130.)

[13] These principles, which apply to conditions of felony probation granted to one who stands convicted of a crime, necessarily must apply to conditions of OR release granted to one accused of a crime.   While we agree that the drug testing and search conditions imposed in these cases impinge upon petitioners' constitutional rights, especially upon the right to be free of unreasonable searches and seizures, we believe that this impingement upon Fourth Amendment rights simply lends support to our conclusion that a judge or magistrate must find factual justification for the type of conditions of OR release petitioners challenge.

 Search conditions have been regularly evaluated for justification based upon the circumstances of individual cases.   In the probation context, such conditions have been approved or disapproved as the circumstances have appeared to warrant.  (See, e.g., People v. Mason (1971) 5 Cal.3d 759, 764–765, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545;  People v. Keller (1978) 76 Cal.App.3d 827, 143 Cal.Rptr. 184, disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   Although we believe a similar standard should be applied to search conditions in the context of pretrial OR release, we do not endorse petitioners' broad generalization that “there is no significant danger to public safety in releasing persons accused of simple possession of controlled substances, or possession for sale of small or moderate quantities of such substances, on their own recognizance.”  (Capitalization omitted.)   As we noted above, “a court must balance ‘the nature and quality of the intrusion of the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’  [Citations.]”  (Berry v. District of Columbia, supra, 833 F.2d at pp. 1034–1035.)   We are convinced that once an individual who has been brought before a court on charges of having violated felony drug laws seeks to be released on his or her OR, a magistrate or court can reasonably determine that articulable facts exist which warrant imposition of a drug testing and/or search condition for the protection of the public.   Whether such a condition could be justified depends upon what facts can be competently shown;  whether the condition, if justified, will be imposed is left to the sound discretion of the judge or magistrate once he or she has been adequately informed.   The validity of particular search conditions must be determined, and reviewed, case by case.

 Petitioners note that in rejecting the prosecution's argument that search and seizure conditions could be required of drug divertees because those conditions could be applied constitutionally to probationers convicted of certain offenses, the Frederick court reasoned that “the status, on the one hand, of one eligible for diversion and the status of both the probationer and the narcotic addict out-patient on the other differ essentially.   The former has been merely accused of having committed a crime of which he is presumed innocent until convicted.   Therefore, any condition imposed upon him incident to the diversion of his case cannot be justified on the basis that it either deters or prevents him from engaging in further criminal activitybecause it has never been established beyond a reasonable doubt that such has been his conduct in the past.”  (47 Cal.App.3d at p. 691, 121 Cal.Rptr. 118.)   Our conclusion that individualized suspicion that an accused will use or possess drugs should be based on factors such as evidence of prior drug use, drug-related convictions, or self-reported drug use, vitiates this concern.   If a magistrate or trial court makes an individualized determination that an arrestee will probably use and/or possess drugs while released pending trial, then a pertinent search or drug testing condition could be found reasonable.  (Berry v. District of Columbia, supra, 833 F.2d at p. 1035.)

5. Equal Protection

With no citation to authority, petitioners argue that “[t]here is no rational basis for allowing person[s] who can afford to post bail to be released without restrictive conditions, while those who cannot do so must give up their Fourth Amendment rights [fn. omitted].”  “ ‘[T]he burden of establishing the unconstitutionality of a statute rests on him who assails it, and ․ courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators.   A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.’  [Citation.]”  (Brown v. Superior Court (1971) 5 Cal.3d 509, 520, 96 Cal.Rptr. 584, 487 P.2d 1224.)   Given our conclusion that the relief sought must be granted on other grounds and given the paucity of the record before us on the issue of equal protection, we simply note that petitioners in this case have failed to identify a constitutionally significant identifiable classification, among persons or entities, effected by government action which tends to disadvantage the members of one class relative to the members of another.   We additionally note that petitioners similarly have failed to establish that they fall into the class of those assertedly discriminated against or that the statute violates equal protection under either the federal (U.S. Const., 14th Amend.) or the California (Cal. Const., art. I, § 7, subd. (a)) constitutions.

6. Disposition

The writs of habeas corpus are granted.   For any petitioner whose underlying criminal prosecution has not yet concluded, and who is still subject to conditions of OR release, the court shall vacate those portions of his or her supervised OR release order which require submission to warrantless drug testing and search and seizure.   If the prosecutor elects within 30 days to request additional conditions of OR release for any such petitioner, the court shall consider that request in conformity with the opinions expressed herein.

FOOTNOTES

1.   We agree with petitioners that a “ ‘compelled intrusio[n] into the body for ․ alcohol [or drug] content’ must be deemed a Fourth Amendment search.”  (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 616, 109 S.Ct. 1402, 1412, 103 L.Ed.2d 639;  see also People v. Melton (1988) 44 Cal.3d 713, 739, fn. 7, 244 Cal.Rptr. 867, 750 P.2d 741;  Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 16, fn. 8, 267 Cal.Rptr. 618.)

2.   Unless otherwise specified all further statutory references are to the Penal Code.

3.   We are aware of petitioners' argument that because the Legislature did provide for drug testing as a condition on probation or parole in Health and Safety Code section 11551, it is clear the Legislature would have made a similarly explicit provision for drug testing as a condition of OR release had it intended to permit such a condition.   We believe this argument begs the question whether the considerably broader provision the Legislature did add to section 1318 provides sufficient statutory authority for conditions such as those petitioners challenge.

4.   At oral argument, counsel for petitioners conceded it is “theoretically possible” that “there may be circumstances where a warrantless search condition or a testing condition might be imposed,” noting that “maybe a record could be made.”   Counsel emphasized, “I'm not asking this court to lay down a rule that now and forever more nothing can ever be done by way of drug testing or anything of that nature as an OR release.   What I'm seeking is simply an adjudication, that under the authorities that I've indicated here and with the record which is either silent or supports our position, that this is done as a blanket policy without regard to circumstances, with no indication of the facts of the specific case, and with no hearing being held.”

5.   Like the court in Berry, we express no opinion on whether the magistrate or court can consider pre-arraignment drug test results as a basis for forming an individualized suspicion that particular arrestees will use drugs while released pending trial.  (833 F.2d at p. 1035, fn. 18.)

6.   In Hill v. NCAA, supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 [94 C.D.O.S. 681], the California Supreme Court recently reviewed the various sources of the right to privacy.   In so doing, it commented that “[t]he Fourth Amendment's search and seizure clause is sometimes referred to as a ‘privacy’ provision.  [Citation.]   The Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable.  [Citation.]   Under the Fourth Amendment and the parallel search and seizure clause of the California Constitution (art. I, § 13), the reasonableness of particular searches and seizures is determined by a general balancing test ‘weighing the gravity of the governmental interest or public concern served and the degree to which the [challenged government conduct] advances that concern against the intrusiveness of the interference with individual liberty.’  [Citation.]”  (Id., at p. 29, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   It is interesting to note that in its subsequent discussion of the competing interests between the NCAA's desire to “protect the integrity of competition through the medium of accurate testing of athletes engaged in competition” and the plaintiff student athletes' right to privacy, the court mentioned its preference “to avoid the continuing uncertainty and confusion inherent in the rigid application of a ‘compelling interest’ test to a multi-faceted right to privacy.”   (Id., at p. 56, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   The court did, however, clarify that it is erroneous to conclude that “a compelling interest test ‘places a heavier burden on [the defendant] than would a Fourth Amendment privacy analysis in which the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests.’  [Citation.]”  (Ibid.)   The court announced that it would not perpetuate this kind of error by continuing to use “the vague and ambiguous adjective ‘compelling.’ ”  (Id., at p. 57, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

COTTLE, Presiding Justice.

BAMATTRE–MANOUKIAN and WUNDERLICH, JJ., concur.

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